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IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - x UNITE HERE LOCAL 355, Petitioner v. MARTIN MULHALL, ET AL. : : : : No. 12-99

- - - - - - - - - - - - - - - - - x Washington, D.C. Wednesday, November 13, 2013

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:03 a.m. APPEARANCES: RICHARD G. McCRACKEN, ESQ., San Francisco, California; on behalf of Petitioner. MICHAEL R. DREEBEN, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; for United States, as amicus curiae, supporting Petitioner. WILLIAM L. MESSENGER, ESQ., Springfield, Virginia; on behalf of Respondents.

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C O N T E N T S ORAL ARGUMENT OF RICHARD G. McCRACKEN, ESQ. On behalf of the Petitioner ORAL ARGUMENT OF MICHAEL R. DREEBEN, ESQ., For United States, as amicus curiae, supporting the Petitioner ORAL ARGUMENT OF WILLIAM L. MESSENGER, ESQ. On behalf of the Respondents REBUTTAL ARGUMENT OF RICHARD G. McCRACKEN, ESQ. On behalf of the Petitioner 53 26 16 3 PAGE

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P R O C E E D I N G S (10:03 a.m.) CHIEF JUSTICE ROBERTS: argument first in Case 12-99. Mulhall. Mr. McCracken? ORAL ARGUMENT OF RICHARD G. McCRACKEN ON BEHALF OF THE PETITIONER MR. McCRACKEN: it please the Court: Many employers and unions find agreements such as this useful to avoid conflict during organizing campaigns. They are efficient. They avoid the hard Mr. Chief Justice, and may We will hear

Unite Here Local 355 v.

feelings that come in many contested organizing campaigns and thereby create a good environment for collective bargaining. They serve the core objectives

of the Labor Management Relations Act, those being freedom of contracts, organizing employees for collective bargaining, and labor peace. JUSTICE KENNEDY: I -- I think there's But can we talk

substantial force to that argument.

just about property just for a minute, just in the abstract? Isn't it true that what you have might become If you take a picture of a But

property when you trade it?

celebrity on a street, that's your right to do so.

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you can't sell it. right analogy.

Maybe that's not quite the -- the

But here, what, as you point out, is

fairly standard in labor relations, has been turned into property, arguably, by the parties. Could the parties say that we'll pay you -the employer say we'll pay you $100,000 to get out of the recognition agreement? economist sense. Labor Act. MR. McCRACKEN: Yeah. That example would If the That would be property in an

Now, it might be a violation of the

definitely be a violation of Section 302.

employer gave the union $100,000 to not organize, that would be exactly like the -- case from 1957 from the Fourth Circuit. JUSTICE KENNEDY: wouldn't that be property? MR. McCRACKEN: They -- money is property. But in the abstract,

We don't dispute that at all. JUSTICE KENNEDY: And isn't the thing that's

exchanged for the money also property? MR. McCRACKEN: The -- this statute focuses

on what is paid, lent or delivered by the employer to -JUSTICE KENNEDY: I'm just talking about

common definition, our common agreement as to what property means.

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MR. McCRACKEN:

In this case, the all -- the

only thing given by the union was a promise not to strike, picket or boycott this business, to help supply labor if the employer needed it, not to coerce or threaten employees in the course of the organizing effort and to -- and to arbitrate in the event that there was any dispute. CHIEF JUSTICE ROBERTS: list of -- the list of employees. MR. McCRACKEN: Yes. That's what the And I was And the list -- the

employer promised to give to the union.

describing the things the union gave in response -CHIEF JUSTICE ROBERTS: MR. McCRACKEN: agreement. JUSTICE SCALIA: What -- what about support Was that a Oh, I see.

Because it was a mutual

of the legislation to permit slot machines? promise that the union made? MR. McCRACKEN:

It is so alleged and there's

no question that the union did tell the employer and the other employers that it would work to pass the legislation necessary for these employers to get into business in the first place. Thereby serving their

interest and also the union's interest in having an industry and workers in the industry to represent.

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JUSTICE SCALIA:

But as the case comes to

us, we assume that there was such a commitment by the union. MR. McCRACKEN: JUSTICE SCALIA: JUSTICE KENNEDY: Yes, Your Honor. Okay. So suppose the company

manufactures widgets and the union says, we'll spend $100,000 advertising your widgets if you so -- if you sign the recognition agreement. MR. McCRACKEN: Yes. I think --

JUSTICE KENNEDY: MR. McCRACKEN:

Is that lawful?

It would be lawful because It would

the union would not have received any widgets. not have received any kind of property from the employer.

It would simply have promised to help the

employer in business, something that happens a great deal in labor relations. JUSTICE SCALIA: Well, there would have been I mean, the union It would get

a quid pro quo for that, certainly. wouldn't promise that for nothing.

something in exchange such as, as in this case, the right to go on the employer's property to -- to recruit union members or -- or some other thing of value from the employer, right? MR. McCRACKEN: Unquestionably. And this,

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as I say, happens a lot with -JUSTICE SOTOMAYOR: So why isn't that the They -- the

property that Justice Kennedy referred to?

union paid $100,000 to get the items that the employer gave them. So aren't they valued, something tangible,

valued for what the union paid for it? MR. McCRACKEN: union. They are desired by the

That does not make them things of value that are

paid, lent and delivered by employers -JUSTICE SOTOMAYOR: But why? Well, the --

the argument that Justice Scalia and Kennedy are referring to it, is that the employer paid with the employee list, the access to the facility, the promises not to strike to get the 100,000. MR. McCRACKEN: And -I think that is the

JUSTICE SOTOMAYOR:

essence of -- because the union paying money is not a violation of the Act. MR. McCRACKEN: The -- there's no

prohibition against the union paying money to an employer. JUSTICE SOTOMAYOR: MR. McCRACKEN: around. Right.

It's only the other way

And in this case, the union spent $100,000 of

time of its staff knocking on doors exercising its

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speech and petition rights in order to get this legislation passed so that the employer could get into business. JUSTICE SCALIA: Mr. McCracken, the

Respondent's brief here asserts that these kinds of precertification agreements have only been common since the -- the '90s. Is that accurate to you? It is not, Justice Scalia.

MR. McCRACKEN:

There -- there's an article from the Cornell Industrial Labor Relations Department by Eaton and Chriskey showing that these agreements go back to the 1970s. Also in the

Sixth Circuit's -- the Dana Corporation case, you'll see that there's an explanation that the neutrality agreement between Dana and the UAW was first signed in 1976. So these go back quite a bit further. Also, they really go back in a rudimentary way much further than that to the Lion Dry Goods case, which was a -- an agreement with a non-incumbent union and department store employers in Cleveland that provided, among other things, for access. CHIEF JUSTICE ROBERTS: Sometimes there's a

conflict between two different groups that want to unionize the same workforce, right? MR. McCRACKEN: Yes. How would this work

CHIEF JUSTICE ROBERTS:

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in that case?

Let's say the employer gave -- entered in

an agreement like this with one union that wanted to organize the same workforce but not the other. MR. McCRACKEN: The NLRB has dealt with that

quite a few times and takes the position and has required employers to give equal rights to both unions. CHIEF JUSTICE ROBERTS: Doesn't that suggest

it's a thing of value in -- in this context? MR. McCRACKEN: It's certainly not a thing

of value in the sense of marketability, because the one union could not sell it to the second union because the other union could get it free from the employer because the employer must give equal rights to all comers. JUSTICE KAGAN: In the typical case, how How

important is an agreement like this to the union?

much does it increase the likelihood that the union will be selected as the exclusive bargaining representative? MR. McCRACKEN: The same article that I

mentioned, Justice Kagan, shows that the differential is between about -- about 67 percent success rate in NLRB elections and about a 76 percent success rate under these agreements. CHIEF JUSTICE ROBERTS: Are the

agreements -- are the agreements uniform or do they have varying elements?

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MR. McCRACKEN: are quite standard.

There are some things that

CHIEF JUSTICE ROBERTS: check provision standard? MR. McCRACKEN:

Is -- is the card

It is found in most

agreements, neutrality somewhat less so, but still in the vast majority of them. JUSTICE KENNEDY: I don't -- I think this is

slightly different from Justice Kagan, but can you give us some indication of how often employers make these agreements? That's probably a hard statistic to -- to

collect because there are so many variables. MR. McCRACKEN: Yes. But I can -- I can

tell you from my experience, if I may, that these agreements are prevalent in the hospitality industry both in hotels and casinos, and that all of the major hotel companies have entered into these and the major casino companies as well. JUSTICE KAGAN: Why is that? Mr. McCracken, could

JUSTICE GINSBURG:

you -- could you tell -- tell us about this particular contract, because as far as I can fathom from what we have it expired at least a year ago and there was -there was no recognition, there was no election; is that right?

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MR. McCRACKEN:

Yes, that's correct. So, are we dealing with a

JUSTICE GINSBURG:

live case considering that the -- the agreement has expired? MR. McCRACKEN: Justice Ginsburg, the

complaint in this case prays for two different forms of relief. One is that the provisions of this agreement But the second is that the union never

not be honored.

demand or request or receive any of these things, that is neutrality, names and addresses, or access, regardless of an agreement. JUSTICE GINSBURG: would be the relief? MR. McCRACKEN: The relief -- if this case So what would be -- what

went forward and was found meritorious, the relief would be an injunction against the union from ever asking an employer for -- this employer for neutrality or for the names and addresses of employees or for any form of access to the premises and not -JUSTICE GINSBURG: Because -- is it on the Is

theory that it did it once, so it might do it again? that -MR. McCRACKEN: The -- I believe that the

theory that the plaintiff has here is that an employer may never give these things, whether it's in an

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agreement or not in an agreement, that even if -- pardon me. JUSTICE ALITO: Would Mr. Mulhall have to

face an imminent threat in order for him to have standing? MR. McCRACKEN: JUSTICE ALITO: imminent at this time? MR. McCRACKEN: JUSTICE ALITO: at this time? MR. McCRACKEN: Your Honor, we -- we I'm sorry? Why is the threat imminent He would, Your Honor. And why is the threat

advocated during an earlier phase of this case that there was no standing. JUSTICE ALITO: MR. McCRACKEN: What is your position now? We -- we still do not

believe that he has standing, because there is no imminent harm here. The harm that he -- he alleges is

that he will be ultimately forced into a collective bargaining situation that he doesn't want. However,

that could only occur if the union succeeded in convincing a majority of his co-employees that they should unionize and the employer gave recognition and the collective bargaining agreement was negotiated. Only -- only after -- so -- so imminence is -- is very

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distant here. JUSTICE KAGAN: Did you also raise in an

earlier stage an argument that he had no private right of action? MR. McCRACKEN: JUSTICE KAGAN: litigated? MR. McCRACKEN: litigated. It hasn't -- it has been We did not. That has never been

It's been -- it's a point that's been raised

and rejected by all the courts to consider it, largely because of the Court's -- this Court's statement in Atkinson versus Sinclair Refining. Now, it was dictum,

but it has -- it's something that has been accepted by all of the courts. JUSTICE GINSBURG: this case. But not in this -- not in

It wasn't raised in this case. MR. McCRACKEN: It was not raised in this

case.

Instead, standing was raised. JUSTICE GINSBURG: And Sinclair is of a

certain age before this Court looked more carefully at the implication of private rights of action. MR. McCRACKEN: Ginsburg. That's true, Justice

But the Court in the DeMasse case in 1993

involving whether trust funds could be administered by the judiciary, essentially, under Section 302(e) assumed

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the existence of a private right of action.

And the

Court decided that it was -- it was not proper for the courts to -- to get past the point of the formation of the trust and engage in trust fund administration, but it was assumed that the plaintiff had a right to sue. JUSTICE ALITO: Why wouldn't the right to

use private property in a way that otherwise wouldn't be allowed constitute a thing of value? Suppose the --

what the employer gave the union was a lease well -well below market rate on property for use as the -- as a union office. Would that qualify as a thing of value? It would qualify both as a

MR. McCRACKEN:

thing of value and one that is paid, lent, or delivered by the employer to the union. JUSTICE ALITO: here? So what's the difference

There's a -- there's the use of -- there's the Why doesn't

conveyance of a certain property right. that constitute a thing of value? MR. McCRACKEN:

Because the union really

only had a right of access, not any exclusive possession of any property, and only for the very limited purpose of communicating with employees about their Section 7 rights. JUSTICE ALITO: But it's still -- it's a

lesser property right, but isn't it a property right?

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What if the -- what if the employer sold to a catering company the right to drive lunch trucks onto its premises to sell sandwiches and coffee to the employees? Wouldn't that be a property right? MR. McCRACKEN: Honor. Not under Florida law, Your

The -- because it would only, at most, be a No interest in real property would be given. JUSTICE ALITO: All right. Well, isn't a

license.

license a thing of value? MR. McCRACKEN: A license may be a thing of In this

value that -- that is paid, lent or delivered.

case, there was not a license so much as there was a waiver or forbearance of the employer's right to exclude. The union did not receive or accept any It didn't -Well, that's true of all

employer property.

JUSTICE KENNEDY: property owners.

I have a right to waive my right to That's -- that's And -- and it can

exclude you from the property.

property -- that's a property right.

become so when I -- when I charge for it. MR. McCRACKEN: Yes. It is your property

right, but the union did not obtain your right to exclude. It did not obtain that property right. It --

it obtained the right to be there to -- not to any exclusive area, but your property right to exclude

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remained in your hands. JUSTICE SOTOMAYOR: Counsel, it's clear that

there's some difficulty in defining the limits of property. There are some things that I think have value For

even though they may not have market value.

example, an employer bribing a union steward by offering him a favorable work schedule or -- or days off that are a weekend or something that's valuable to the worker but doesn't necessarily have an objective value. The government cites Credit Suisse v. Billing in its brief. When you get up on rebuttal, I

want to talk to you about the -- the law that has developed in that case and why it doesn't apply here. MR. McCRACKEN: Yes.

Thank you, Your Honor. CHIEF JUSTICE ROBERTS: MR. McCRACKEN: time? CHIEF JUSTICE ROBERTS: MR. McCRACKEN: Yes, of course. Thank you, counsel.

May I reserve my remaining

Thank you very much. Mr. Dreeben.

CHIEF JUSTICE ROBERTS:

ORAL ARGUMENT OF MICHAEL R. DREEBEN, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER MR. DREEBEN: Mr. Chief Justice, and may it

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please the Court: Section 302 cannot be read in isolation from the remainder of the labor laws. The United States does

not dispute that if all this Court had to look at was the words "thing of value" in Section 302, the promises that were at issue in this case could be viewed as things of value and, with a little bit of stretching of the language, could be viewed as paid, lent, or delivered. JUSTICE ALITO: Well, before you get too

much into the merits, could -- does the United States have a position on whether this case satisfies Article 3. MR. DREEBEN: We don't, Justice Alito. The

Eleventh Circuit did hold that Mulhall had standing and there -- we raised a question of whether the case is moot at the certiorari stage as a reason why this Court may not want to take the case. But we have not drilled

deeply enough into it to have a position on that question. JUSTICE GINSBURG: Does the United States

have a position on the implication of a private right of action under 302? MR. DREEBEN: Justice Ginsburg, it seems to

have been accepted historically and, as my co-counsel

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mentioned, it was referenced in dictum by this Court; it's been accepted by the lower courts. I think if this

Court were looking at the language of the statute today, Section 10(e) of Section 302(e) of the statute, which is on page 11a of -- of our brief, gives the district courts jurisdiction to hear violations of this case -of this statute, and courts have assumed that private parties could invoke that. If the Court were looking at that afresh, I'm not sure that it would reach that result. But there The

is a lot of ink on the page with respect to it.

Eleventh Circuit did not reach that issue and it doesn't seem to be squarely presented here. But what is

squarely presented here is whether the Court should read Section 302 as a freestanding provision divorced from the central policy of the labor laws and the remaining provisions in the labor laws. Now, as Justice Sotomayor -JUSTICE KENNEDY: Are you saying "thing of

value" means something different in 302 than it means elsewhere in -- in the code? MR. DREEBEN: I think -I -- I can see if there

JUSTICE KENNEDY:

was a conspiracy to extort these benefits, that the government would take the position that there was a

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crime because there was a thing of value, a thing of property. MR. DREEBEN: Well, under this statute, the

government's position is that the three terms that are at issue -- "neutrality," "access," and "employee list" -- are not prohibited by Section 302. Probably the best

way to reach that conclusion is to determine that Congress did not intend that these three things be viewed as things of value under the statute. Certainly, read in isolation, the words "thing of value" are very broad. they cover intangibles. In other statutes,

We would have no problem

treating the things here as things of value under statutes or under 302 if that's the only thing that existed. JUSTICE SOTOMAYOR: Isn't Billing your best

argument, the framework of Billing? MR. DREEBEN: Sotomayor. Yes, I think it is, Justice

What the Court has to do here, as it did in

the Billing case, is read multiple statutes together in order to harmonize them. And just as in Billing, the

Court said, well, the antitrust laws literally do apply here, the securities underwriting activity could violate the antitrust laws. The Court looked at it in light of other

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policies reflected in the securities laws and determined that Congress, having established an intricate framework for regulation of the very same activity in the securities laws, would not have intended the antitrust laws to come along and supplant it. And here what you have are -JUSTICE SOTOMAYOR: Some people have

suggested that Billings is limited to the antitrust area. MR. DREEBEN: I don't think that -And how do you respond

JUSTICE SOTOMAYOR:

to that belief and -- and how do you convince us to expand the doctrine outside its traditional context? MR. DREEBEN: Billing is simply an

application of this Court's responsibility to divine Congress's intent based on language, structure, and history and policy of the relevant laws. And here, all

of those things when read together indicate that agreements by parties to set the ground rules for an organizing campaign do not constitute prohibited things. JUSTICE BREYER: Fine. But what is the --

suppose the employer had written a check for $100,000 to the union and everything else is the same. ask, why did he do that? Now, you

He said because they have to

have the money so that they can run the organizing

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campaign along the lines that everyone wants. covered or not? MR. DREEBEN: violation. JUSTICE BREYER: Yes.

Is that

That would be a

So then when I write the

opinion that says that is covered, but the access, the employer lists, and the -MR. DREEBEN: Neutrality. -- yes, and the neutrality, $100,000 is, but they

JUSTICE BREYER:

those are not covered because.

aren't because; and then what comes after the "because"? MR. DREEBEN: Two things, Justice Breyer, First of all,

and they're both equally important.

the -- the provision of money is useful to the union in any number of ways and gives rise to the dangers of misuse. JUSTICE BREYER: they're going to use it. the way -MR. DREEBEN: It can't be -- it can't be No, no. We specify how

They're going to use it just

restricted in that way because the origins of Section 302 came from -JUSTICE BREYER: with the because. go-beyond. Okay. Okay. Okay. No. Continue

One, because money might be a What's the other?

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MR. DREEBEN:

The other is that reading the

policies of the Act as a whole, we start from the proposition, which is undisputed by Respondent and reveals that his purportedly literal application of Section 302 just does not wash. We start from the

proposition that voluntary recognition of a union is not only permissible under the National Labor Relations Act, it's a favored element of national labor policy. The

voluntary reconciliation of agreement, of disputes between labor and management is what this Act drives at. CHIEF JUSTICE ROBERTS: there -MR. DREEBEN: If I could just finish this Well, if -- if

one point, Mr. Chief justice, to answer Justice Breyer's question. (Laughter.) MR. DREEBEN: The three procedures that are

at issue here are all procedures that are useful and geared towards facilitating voluntary recognition and are only useful for that purpose. CHIEF JUSTICE ROBERTS: MR. DREEBEN: (Laughter.) CHIEF JUSTICE ROBERTS: But if you recall If I may?

Thank you.

the point you made earlier, the point is, yes, voluntary

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agreement, but if a majority of the workforce wants to be organized and represented by that union, and the argument here, as I understand it, is that this agreement taints that process, in particular, by allowing the card check procedure that it has been argued exercises coercion against employees to support the union. MR. DREEBEN: Well, this Court in the Gissel The

Packing case many years ago rejected that argument. National Labors Relation Board has rejected that argument. Certainly -CHIEF JUSTICE ROBERTS: the card check -MR. DREEBEN: inherently coercive, yes. Card check agreements are That has been rejected.

The argument that

CHIEF JUSTICE ROBERTS:

Well, will you --

will you concede that they're more coercive than a secret ballot? MR. DREEBEN: at all inherently. I don't think they're coercive

They may be -The union organizer You can

CHIEF JUSTICE ROBERTS:

comes up to you and says, well, here's a card.

check I want to join the union, or two, I don't want a union. Which will it be? And there's a bunch of your

fellow workers gathered around as you fill out the card.

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MR. DREEBEN:

Well, some would argue -And he's a big guy.

JUSTICE SCALIA: (Laughter.) MR. DREEBEN:

Some would argue that

employers also have big guys and it's very coercive to have your employer in there on the factory floor reminding employees daily that they're very anti-union and that there are a lot of costs to joining a union. And so the -- the process here is one in which, yes, the parties can go to the National Labor Relations Board and have an election. But this Court in the Gissel Packing

case, backed up by decades of Board law, has validated that card check agreements are perfectly legitimate and may facilitate the employees' free exercise of their choice to have a union. The agreement in this case doesn't recognize the union. All the agreement does is establish a

perfectly lawful process, which Respondent concedes would be a thing of value, but he then has to carve it out from Section 302, a voluntary recognition agreement. And the access that is given to the property, which is something that employers lawfully can do -- it's their property, they have the right to do it -- they provide it so that the employees can get information from the union about unionization. And the employee list serves

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the same thing. And these things -- access, employee list, neutrality -- have been elements of Federal labor policy for decades. JUSTICE GINSBURG: One curious thing about

the Eleventh Circuit's opinion is it didn't reject. It's a -- it's a curious opinion and we are at an interlocutory stage. But the opinion reads: "Employers

and unions may set ground rules for an organizing campaign even if the employer and union benefit from the agreement." So that the Eleventh Circuit seemed to But it

agree that these agreements are enforceable.

said that it can -- they can become illegal if used in a scheme to corrupt. MR. DREEBEN: All of the courts of appeals,

Justice Ginsburg, have concluded that ground rules agreements are inherently lawful. The Eleventh Circuit

added a motive-based limitation on it that responded to a policy that's just not reflected in the language of the Act. JUSTICE SCALIA: What about slot machines?

You -- you mentioned all of the other things promised, but not -- not the promise to support legislation. MR. DREEBEN: That's right. The union's All

promises are not comprehended by Section 302.

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that's at issue here is whether it's a Federal crime for an employer to say to a union: organize? You guys want to

I will let you come into my plant and address In fact, better yet, we will have a

the employees.

debate, management on one side, union on the other. Come into our hall to do that. crime under Respondents' view. Thank you. CHIEF JUSTICE ROBERTS: Mr. Messenger. ORAL ARGUMENT OF WILLIAM L. MESSENGER ON BEHALF OF THE RESPONDENTS MR. MESSENGER: it please the Court: Enforcing Section 302 in this case cannot conflict with the National Labor Relations Act. As Mr. Chief Justice, and may Thank you, counsel. That would be a Federal

UNITE admits, organizing agreements such as this are meant to privatize the National Labor Relations Act and avoid the representational procedures. The agreement

here expressly requires that the employer not petition for a secret ballot election, not file unfair labor practices with the National Labor Relations Board, and also provide assistance to the employer -- or to the union, that he has no right to receive -JUSTICE GINSBURG: But, Mr. Messenger, you

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are dealing with a decision that seems to uphold organizing agreements. that it's saying is: I just read the passage and all

Find out if in this case there was But it does say employers and

some corruption involved.

unions may set ground rules even if the employer and the union benefit from the agreement. So you seem to be construing the Eleventh Circuit decision to say something it didn't say, to say that organizing agreements violate 302. MR. MESSENGER: things. Well, I would say two

First, the issue of course are the three

individual provisions, not organizing agreements as a whole. The three things at issue here of course is the

gag clause, the use of property, and the information, not the agreement. But secondly, the Eleventh Circuit's opinion comes from its holding that this intangible assistance can't be delivered, it can only be paid, and therefore, the court held you needed to show consideration for payment. JUSTICE GINSBURG: MR. MESSENGER: Where is that?

It's at the Eleventh

Circuit's opinion, right above the section that you just read from, where the court held that it didn't believe that things could be delivered, which we disagree with,

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but they can be paid; and therefore, if consideration is given, then you have a violation. And then it goes on

to say that consideration would show that the purposes of the statute are implicated by the transaction, because in that case the union is being influenced by what the employer gave. So the Eleventh Circuit, when it said that not all ground rules agreements will violate 302 was saying that if no consideration was given, there would be no payment and therefore no violation in that. JUSTICE GINSBURG: It says -- it says that,

at the end of that passage, curbing bribery and extortion are implicated. MR. MESSENGER: Yes. And said that's what --

JUSTICE GINSBURG: MR. MESSENGER:

If there is consideration.

So if the employer gives this assistance and the union gives something in return -- for example, here the $100,000 political campaign and agreement not to strike -- then it becomes a payment, because the consideration shows payment. JUSTICE GINSBURG: What is your position on

the effect of the expiration of this agreement? MR. MESSENGER: I don't believe that it

renders the case moot, for two reasons, the first of

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which is that UNITE has pending a lawsuit to compel arbitration in which it is alleging violations of the agreement that occurred before it expired. And one of

the remedies the union is seeking is to have the agreement extended for a longer period of time, which is a remedy it received before. And that lawsuit is It's been

currently pending in Federal district court. stayed pending these proceedings.

And then the second reason is UNITE continues to demand this organizing assistance. 302(b)(1) makes it illegal for a union to demand a thing of value, even if it doesn't receive it. UNITE here is

clearly still demanding that Mardi Gras help it organize its employees, so Mulhall still has standing to seek injunctive relief to stop the union from demanding those things. JUSTICE SCALIA: Mr. Messenger, could --

could all of these things that the employer gave to the union be included in a finally-negotiated collective bargaining agreement? Couldn't that CBA say that the

union shall have the ability to approach employees on the site, that the union shall have access to the employee list of the employer -- and what else, what's the third -- and that the employer will not -- will not seek to undermine the union? Could all of that be

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included in a CBA? MR. MESSENGER: The first two could because

the exceptions to 302 start to apply, the exceptions found at 302(c). For example, access for union stewards

has been upheld under Section (c)(1), which allows for access to union officials if by reason of their service to the employer. And so giving a union steward use of

property to administer the contract and such has been upheld. That case is BASF v -- BASF Wyandotte. The information. During collective

bargaining, a union has a right to information under Section AEP 5 of the National Labor Relations Act. Giving that information would fall under the exception found at (c)(2), which provides for the release of any claim that a union may have. And so the union has a

legal claim to that information under the NLRA, so if the employer agreed to provide it or did provide it, it would fall under that exception. JUSTICE KAGAN: Mr. Messenger, do I

understand the structure of your argument to be as follows: That whether before certification or

afterwards in a collective bargaining agreement along the lines that Justice Scalia said, the only thing that an employer can promise a union or agree to provide to a union are things that are specifically authorized in

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other parts of the labor law? your argument? MR. MESSENGER:

Is that the structure of

Yes, Your Honor.

And

because in the collective bargaining, a union of course is supposed to act as an employee representative and not for itself, so most terms of collective bargaining agreements go to the employees, not to the union itself. 302's whole purpose or primary purpose is precisely to prevent such self-dealing. JUSTICE KAGAN: You see, I would have

thought that the premise and the policies of the labor laws are to encourage a wide variety of employer/employee agreements, both things that are listed in the labor laws, that are provided for in the labor laws, but many things that are not; that the idea is to get these parties together to reach agreements on a wide variety of things that matter to them regardless whether the labor law specifically refers to that. MR. MESSENGER: JUSTICE KAGAN: Well, the structure -It seems sort of turning the

whole thing on its head to say that the only things that are allowed in terms of promises, whether in a collective bargaining agreement or prior to that, are the things that the law itself requires. MR. MESSENGER: Well, I believe that is the

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structure of Section 302.

(A) and (b) are simply a

bright-line gift ban, and then (c) provides the exceptions to it. And that sort of structure for a

conflict of interest statute is relatively common. And so the common terms of collective bargaining agreements either, A, deliver nothing to the union itself but give things to employees such as wages, or in the alternative, does go to the union, it has to fall under one of the exceptions, and there's numerous -JUSTICE SOTOMAYOR: Counsel, why don't --

why doesn't the Billings -- Billing framework apply beautifully here? MR. MESSENGER: Because -What it holds is that

JUSTICE SOTOMAYOR:

where there's a regulatory framework, and here there is, that produces standards of conduct, going to Justice Kagan's point, that almost all of the three things that you're arguing against are standards of conduct that have been approved by -- have been approved by the government, and when those conflict with the separate Federal statute, then they are implicitly preempted, essentially. Why doesn't that doctrine do the work here? MR. MESSENGER: Well, for two reasons, but

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the first and most important is that Section 302 is part of the labor law. It was enacted, of course, as part of

the Taft-Hartley Act and amended as part of the Labor Management Reporting Disclosure Act. So you're not

talking about two different statutory schemes, as in Billing, where you had the SEC law and you had the antitrust law. 302 is Federal labor law. It is every

bit as much a Federal labor law as any provision of the National Labor Relation Act. JUSTICE SOTOMAYOR: But we have conflicting

provisions within standard statutes anyway, so why doesn't the concept behind it still apply? MR. MESSENGER: The concept would if there

was a direct conflict between the general prohibition of 302 and any right granted by the National Labor Relations Act. But importantly here, nothing gives

UNITE any right to the three things it demands from Mardi Gras. So enforcing 302 in this case cannot UNITE has no right to

conflict with the NLRA.

information from Mardi Gras about its nonunion employees, no right to use its property, as this Court held in Lechmere, and certainly no right to control its communications, as 8(c) of the National Labor Relations Act says that even the NLRB can't control an employee's -- an employer's communications absent a threat or

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promise of benefit. So there is no conflict here. And a

persuasive opinion, although obviously not binding, is the Sixth Circuit's opinion in Mercy Memorial Hospital where the Sixth Circuit -- in that case the general counsel of the NLRB said the employer's conduct does not violate the NLRA and the union brought a 302 claim anyway and the Sixth Circuit said it could bring that claim. 302 is meant to be independent of the National

Labor Relations Act because they didn't give the NLRB any jurisdiction over it and doesn't preempt. And they

also added if it did preempt 302, 302 would be a dead letter. I mean, anything Section 302 deals with will be

covered by the NLRA -JUSTICE BREYER: It's not covering. As I

understand the argument it goes back to like Jurisprudence 1. Can you have -- the sign says no Okay? Does that apply to a Jeep That's been the

vehicles in the park.

used as a war memorial?

Answer, no.

law since the twelfth th century.

You spilled blood in

the streets of Bologna, a crime, but that's not applicable to the barber. All right? So, here, I think what they're You don't have to get

saying is that read this statute.

into a metaphysical argument about things of value;

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rather, those things which play a central role in the organizing campaign are things that are governed by the other parts of the NLRB and to throw them in here -NLRA -- and to throw them in here is going to create a mess. Lists, access, promises to stay neutral are central to many aspects of organizing campaigns, and there are no more within this statute, this part of the thing than the Jeep on the pedestal is part of the no vehicles in the park. Now, that's what I understand And

roughly their argument to be, if I've got it right. what is your response? MR. MESSENGER:

That nothing in the National

Labor Relations Act gives them a right to that. JUSTICE BREYER: right. I didn't say they had a

They didn't say they had a right. MR. MESSENGER: JUSTICE BREYER: Exactly. What they said was the

kinds of property or things of value are at issue here are the kinds of things that play important roles in organizing campaigns. that. And we needn't go further than We It's

We don't have to talk about rights to it.

don't have to talk about who said what to whom.

just that these kinds of things are organizing things, and therefore they're outside the scope --

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MR. MESSENGER: JUSTICE BREYER: the pedestal. MR. MESSENGER:

But Section --- just like the Jeep on

But Section 302 was

specifically amended in 1959 to apply to union organizing. They added Section 8(a)(2) to extend the Section

prohibition to unions that seek to represent.

8(a)(3) applies to things given to employee committees to influence employees in their right to organize or bargain collectively through representatives of their own choosing. JUSTICE SCALIA: Yes. And I suppose -- I

suppose that would also -- it would also follow if -if -- with no indication in the text, you simply exclude organizing -- the organizing part of labor law. I guess

it would mean that the -- the union can cut a deal with the employer that if the employer gives them a freehand and -- and assists them in -- in organizing, the union will promise not to -- not to seek a raise in wages or not to seek insurance coverage or whatever. I guess

that would also be part of the organizing campaign, right, so it would be okay. MR. MESSENGER: Yes. An organizing

exception -- an organizing exception to Section 302 would tear a massive hole in the statute. It's

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difficult to think of anything that unions value more than an employer's assistance with unionizing more employees into the union. JUSTICE GINSBURG: Then may I ask you,

Mr. Messenger, to clarify, because I thought you told me before that some organizing agreements are okay. you taking the position that all organizing agreements -- in other words, are you taking a position in opposition to what I read from the Eleventh Circuit, that organizing agreements can be valid? MR. MESSENGER: Yes, because the issue, I Are

believe, with any agreement is each particular term has to be looked at individually. So, for example, if the

issue was a particular term of a collective bargaining agreement illegal, the question would be phrased, are collectively bargaining agreements legal. with organizing agreements. Same thing

Every term is different. So you -- you do you want

JUSTICE GINSBURG:

us to say that -- that to the extent that the Eleventh Circuit said, "Employers and unions may set ground rules for an organizing campaign, even if the employer and union benefit from the agreement," you want us to say that that was wrong. MR. MESSENGER: Yes. Because that, again,

went back to its payment holding, and Mulhall's position

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is that the Court should overrule the lower court's decision that organizing assistance cannot be delivered. A list of information can, of course, be delivered, so -JUSTICE KAGAN: So, Mr. Messenger, just to

make sure I understand that, you're saying that regardless of whether there was a bargain in this case, forget the bargain. employer. Let's just say that there was an

This employer said, you know, I think that my

employees should have a right to listen to you and to decide for themselves whether they want to be represented by -- by the union, so I'm inviting the union onto my premises. Just simple as that. You're

saying that the employer cannot do that. MR. MESSENGER: That's correct.

Consideration, obviously, can show value, and it could show towards the purpose of the statute. JUSTICE KAGAN: this. I mean, you say -MR. MESSENGER: JUSTICE KAGAN: Yes. -- of course, this is But 30 --

But we -- we don't need

important to the union, so your argument is that it falls within the statute, regardless of whether there's any consideration or quid pro quo. MR. MESSENGER: Exactly. Sorry.

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JUSTICE KAGAN: MR. MESSENGER:

I'm sorry. Exactly. Because 302 is

structured not as a bribery statute that requires a quid pro quo. It's a gift ban to ensure -JUSTICE KAGAN: So this is to say that the

National Labor Relations Act prohibits employers from providing access to their premises, from granting a union a list of employees, or from declaring itself neutral as to a union election. MR. MESSENGER: Yes, with caveats. The --

with the first two, it could fall into exceptions in other circumstances. For, again, during a collective

bargaining relationship, some of the exceptions start to apply to the information and use of property. And going

towards the communications, if an employer unilaterally said, I'm not going to say anything. I don't have the But if

time or money to fight the union, it can do so.

an employer contractually agrees and gives the union control over its speech, then yes, a thing of value -JUSTICE KENNEDY: Do you acknowledge that

your -- that your answer to Justice Kagan is -- is contrary to years of settled practices and understandings? MR. MESSENGER: believe that it is. No, Your Honor, I don't

And if this is going back --

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JUSTICE KENNEDY: of an agreement is very rare? MR. MESSENGER:

In other words, this kind

It's not rare now.

It's

only become prevalent in the 1990s to go -JUSTICE GINSBURG: enforced under 301. And it has -- it has been

So it -- it would be odd to say

that an agreement that is enforceable that court -courts haven't enforced agreements just like this under 301 are criminal under 302. MR. MESSENGER: The exact opposite is true.

Section 301 gives courts jurisdiction to enforce any agreement between a labor organization and an employer. 302 makes it illegal for an employer to agree to deliver something to a union. JUSTICE GINSBURG: Have -- have courts

enforced agreements just like this one under 301? MR. MESSENGER: Many times. However, 302

was not raised in those cases.

So would they have

enforced the agreement if it was alleged that it was -violated 302? this Court. JUSTICE BREYER: think. The question is the same, I That, of course, is the question before

And to go back, I thought the most clear

statement of your view was when you said to Justice Scalia that if we don't accept your interpretation,

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there's a hole in the statute. MR. MESSENGER: JUSTICE BREYER: big hole. MR. MESSENGER: Yes. And this would Yes. And this --

In fact, I think you said a

actually create a larger hole -JUSTICE BREYER: MR. MESSENGER: enforceable -JUSTICE BREYER: MR. MESSENGER: JUSTICE BREYER: MR. MESSENGER: JUSTICE BREYER: I get the point. I'm sorry. I'm focusing on the hole. Yes. Now, I thought the area All right. Now --

-- because of anything

that you're calling a hole is an area where the National Labor Relations Act gives the National Labor Relations Board all kinds of authority to set rules and to say what is an appropriate practice and not. about that? MR. MESSENGER: always covers -JUSTICE BREYER: All right. If the answer To a degree, yes, but 302 Am I right

is yes, and I'm sure there's some qualification, but if the heart of the answer is yes, then it's the contrary that creates the hole, because if we throw those things

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which are central to the NLRA's regulatory power into this particular provision, the NLRA loses the power to say when they're okay, when they're not okay, to make a thousand qualifications. Hence, the NLRA's regulatory provisions and this case are the Jeep on the pedestal or the barber in the street. Even though I have to tell you, in Bologna

in the 18th century, despite the exception of the eighth century, it did not mention barbers specifically in the statute. They had to be read in by the courts. (Laughter.) MR. MESSENGER: The difference, Your

Honor -- I can't speak for Bologna, but 302 is meant to govern labor relations -JUSTICE BREYER: MR. MESSENGER: Yes. -- including organizing, So anything that the

including collective bargaining.

NLRB -- what do you call it? -- has coverage over, 302 also covers it. So, for example -Mr. Messenger, suppose that And the

JUSTICE KAGAN:

there was a -- a union and it was striking.

union goes to the employer and -- and they reach agreement, and the agreement is the union will stop striking if the employer agrees to sit down and negotiate with the union. So that's the promise that

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the employer makes to the union. and negotiate with you.

I'm going to sit down

And that's, obviously, a thing Is that also

of important value to the union. prohibited? MR. MESSENGER:

No, because in that case,

there's no thing that's actually be given to the union, especially if you're talking about negotiating a collectively bargaining agreement, which, of course, those benefits go to employees. JUSTICE KAGAN: given to the union? There's no thing that's

I mean, I would think if your

argument is thing of value is anything that's of value, there's nothing that's of greater value to the union than an employer's agreement to negotiate. MR. MESSENGER: negotiate what? But the question becomes

So if the question is let's negotiate

over employee wages, wages go to employees, there's nothing there. On the other hand, if they say we will

negotiate over how much money we'll pay you to stop striking, well, then that's illegal under 302. So it just begs the question or raises the question -- I'm sorry -- of what comes next after that agreement to negotiate. JUSTICE KAGAN: Well, I guess -- I mean,

we're going to negotiate about all kinds of things,

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things -- things that unions and employers negotiate about, and that's of great benefit to the union. The

union gets to turn around to all its employees and say: Look at this, the employer is going to sit down and talk with us. MR. MESSENGER: I would say in that case,

even if it did have value, no thing is delivered to the union. Because 302 -JUSTICE SCALIA: Well, benefits -- benefits I mean, I

to the employees always benefit the union.

that's -- you know, that's automatic, it seems to me. don't understand how you say that this is just a gift statute and there doesn't have to be any, anything on the other side, no quid pro quo.

You say it's perfectly

okay if the -- if the employer allows the union to come on his premises to recruit members, but it's not okay for him to agree, to agree to do so? MR. MESSENGER: JUSTICE SCALIA: that means. MR. MESSENGER: No, Your Honor. It would be No. I don't understand what

illegal to agree or to do that.

So if an employer

didn't agree to allow the union on its property, it just did, that would still be the delivery of the use of property. So that's not my position.

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JUSTICE SCALIA:

And what if the employer

does not oppose the union, he neither speaks against it nor for it? union? MR. MESSENGER: unilaterally. Not if he does so Is that giving something of value to the

But if he agrees to do so, then the

control is given to the union very similar to a noncompete. And the agreement -- the agreement. The If

example I used in the brief I believe is a good one.

Coca-Cola decides not to run advertising against Pepsi, it hasn't given anything to Pepsi. into a noncompete agreement. JUSTICE SCALIA: It has no meaning to say It doesn't enter

you agree to something when you're not getting anything in return. You can promise something without getting But to agree? I think that means,

anything in return.

you know, I won't do it in exchange for something else. MR. MESSENGER: consideration. And there will be

So the hypothetical given of the

employer just doing it in exchange for nothing will almost never happen, as I believe UNITE says in its brief -JUSTICE SCALIA: say it would be a violation. MR. MESSENGER: Yes. So if the -- for But if it did happen, you'd

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example, if the employer just said to the union, here's a thousand dollars, just put it on the table, that's a violation. It doesn't have to go any further than that.

Or if the union said, Give me a thousand dollars, that's illegal. The employer doesn't have to hand it over. But it's very unusual to have this kind of organizing agreement without a quid pro quo. Most

employers don't hand over their employees to the union without something in exchange, either pre-negotiated concessions at employee expense, such as an Adcock, or an agreement not to strike or a political campaign such as here. JUSTICE SOTOMAYOR: You would argue that the

three items in dispute -- the access to property, etc. -- that the consideration is the agreement to go into arbitration, first of all, putting aside the hundred thousand dollars. MR. MESSENGER: The interest arbitration? The arbitration of

JUSTICE SOTOMAYOR:

disputes that was promised by the employer and the union under this agreement. MR. MESSENGER: consideration. I wouldn't call that

I believe the consideration was, what

the union gave the employer was, the hundred-thousand-dollar political campaign and the

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agreement not to strike. JUSTICE SOTOMAYOR: MR. MESSENGER: JUSTICE KAGAN: Not to strike.

Yes, not to strike. Mr. Messenger, would your I'm just going to give A promise to

argument apply to the following?

you a few different kinds of promises.

give the union information about the company and its finances? MR. MESSENGER: During collective

bargaining, no, because it would fall under the final clause of Section (c)(2). JUSTICE KAGAN: collective bargaining? MR. MESSENGER: the union, yes. JUSTICE KAGAN: I'm sure it does. Then if that had value to But not if not during

An agreement giving the union a role in grievance procedures? MR. MESSENGER: No, because the grievance So a

procedures ultimately go to the employee.

grievance over, for example, should this employee get back pay doesn't deliver anything to the union. JUSTICE KAGAN: Could you explain that I

distinction to me, ultimately go to the employee?

mean, I assume that everything that the union does, the

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union is saying, well, ultimately the benefits go to the employee. MR. MESSENGER: Well, but 302, its very

structure sort of differentiates the union from the employee, so the thought of what's good for the union is good for the employee is somewhat rejected implicitly in 302, that there's a separation there. The union is

supposed to act as their representative -JUSTICE KAGAN: But the union, on the ones

that you say, well, the neutrality agreements, the access, that's just to the union, the union can turn around and say: No, ultimately it's to the employee, So

that we're going to represent the employees well.

the line you're drawing seems quite inadministrable to me. MR. MESSENGER: explain it correctly. I believe I didn't perhaps

It's not that if the union can The

say this is good for employees, that's exculpatory. question is who gets the thing.

In other words, 302 is

a very literal interpretation, not mine, but just going back to the text, 302 requires the -JUSTICE KAGAN: MR. MESSENGER: sorry. JUSTICE KAGAN: No, please. Okay, so the -Payment or delivery -- I'm

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MR. MESSENGER:

Payment or delivery.

So if

the thing is delivered to the employee and not to the union itself, it's not covered. So, for example, the

original legislative history, they said what about the wages to the employees and the supporting Senator said -JUSTICE KAGAN: Yes, but my hypothetical is

the thing, was the union's role in grievance procedures. MR. MESSENGER: JUSTICE KAGAN: MR. MESSENGER: Grievance procedures -So the union gets it, right? No. Because what -- I don't

believe that has any value intrinsically to the union. A grievance procedure is simply a contractual mechanism to do something else. So the question is what's -- in If you agree to If

other words, take arbitration.

arbitrate something, what are they arbitrating?

you're arbitrating over what the union gets, then, yes, that could be illegal. But if you're arbitrating over

what goes to employees, the thing is delivered to the employees. JUSTICE KAGAN: Well, I guess I'll tell you

that a union that can say that it has a role in grievance procedures is, that's an important thing for a union to be able to tell its employees. value to the union to have that. That's of real

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MR. MESSENGER: the employer?

But is the value coming from

Like, there the argument would be the

value is being given is the goodwill of employees towards the union. JUSTICE KAGAN: How about -- how about if a

company gives a union a role in company decision-making, any kind, hiring, any other kind of company decision-making? The company says, we want the union to

participate in this. MR. MESSENGER: I would say probably not, Is it -- if they

because what is ultimately the thing?

gave it control perhaps over, like, you can now run the auto shop and take the profits from it, then yes. However, if it's merely, we'll listen to your input, exactly is being given? Because I think it's

important -- Mulhall is not arguing for an expansive interpretation of 302. The three things that are actually at issue here are rather direct things given directly to the union: Lists of information, use of property. So if

you do move more to the fringes of things that may create indirect benefits to unions, that may create some problems and some difficulties. But the Court need not

reach those here to find organizing assistance to violate the statute.

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JUSTICE KENNEDY:

It's hard to think that

one really pays or lends or delivers, which is are statutory words, neutrality of speech. MR. MESSENGER: It would be control. That's

what pled, is you can deliver control over your communications to another. And that's done in gag

clauses which are common in litigation, of course; and also in noncompete agreements, which are intangible assets for tax purposes. So those can -- that control

can be delivered to another party or paid if it is done in consideration for something else. JUSTICE KAGAN: Mr. Messenger, the Excelsior

rule, if I understand it correctly, the NLRB says that an employer absolutely has to give a list of employees -MR. MESSENGER: JUSTICE KAGAN: Yes. -- to the union seven days

after an election is called; is that correct? MR. MESSENGER: Not exactly. The employer

has to give a list to the NLRB, and then the NLRB distributes it to all parties. JUSTICE KAGAN: gets it seven days after? MR. MESSENGER: JUSTICE KAGAN: Eventually, yes. And that's by requirement. Okay, okay. But the union

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So you're suggesting that if the employer gives it six days after, that's not only not required, that's forbidden? MR. MESSENGER: JUSTICE KAGAN: Yes. So it goes within a period

of 24 hours, something that no employer can do voluntarily to something that has to be done. MR. MESSENGER: Yes, and the reason is it's

not the possession of the list that's somehow wrongful. It's the fact that it's given by the employer, which creates the danger: exchange. What will the union give in

That's the danger that 302 exists to take

care of, not that it's necessarily wrongful per se for a union to have lists of information or the use of property, but what will it do in return. And unions

have compromised employee interests in exchange for this type of assistance. employers. They certainly have extorted

And here UNITE is willing to conduct a

hundred-thousand-dollar political campaign for this information. So, of course, in that hypothetical they'd get it the next day anyway, so it would be rather unusual for it to happen. But in a case like this where

the union can't request an election, that list is extremely valuable to them. And as UNITE's conduct

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shows, they value it enough to do something in exchange for it. JUSTICE GINSBURG: Is it -- we heard from

the other side that that hundred-thousand-dollar payment for the ballot initiative was a benefit both because it would mean that there would be many more workers employed by the casino if they were allowed to go into this new line of business. So that it wasn't payment to

the employer of something that is of benefit exclusively to the employer. It was to the union's benefit too. Yes. I mean, that's

MR. MESSENGER:

probably -- that may be true.

However, 302 doesn't

prohibit, as Mr. -- opposing counsel said, prohibit a union from giving something to an employer. Thank you, Mr. Chief Justice. CHIEF JUSTICE ROBERTS: Thank you, counsel.

Mr. McCracken, you have four minutes remaining. REBUTTAL ARGUMENT OF RICHARD G. McCRACKEN ON BEHALF OF THE PETITIONER MR. McCRACKEN: Thank you. On --

JUSTICE SOTOMAYOR: MR. McCRACKEN:

Mr. McCracken --

Yes. If I understood the

JUSTICE SOTOMAYOR:

circuit below, it was suggesting, like the government,

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that an exchange of agreements for purposes of peaceful recognition, terms that were given for that purpose were legal, but that things given for -- that were not solely for recognition, had value outside of that, like money, would be wrong. That 100,000 is troubling to me because I think what the circuit was saying is if the 100,000 bought the peaceful recognition provisions, then that's corrupt, and that is outside the exemptions that the law provides. That's how I read its decision. Tell me why I'm wrong about that and tell me how I deal with that niggling problem I have about the $100,000, because it does feel like a bribe to the employer. MR. McCRACKEN: And the -- reading the

Eleventh Circuit's decision is actually somewhat difficult, because the -- it appears that the court suspected that there must be something else in the picture that had not been disclosed and that's why it ordered the district court to find out why the two parties had cooperated with each other, despite the fact that no one had alleged anything else in the picture besides what is before us all now. The -- so it seemed that the court was puzzled that an employer would agree with the union to

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cooperate in this fashion.

The cooperation -I don't think it -- it I think it was

JUSTICE SOTOMAYOR:

was puzzled by the provisions at issue. puzzled by the 100,000. MR. McCRACKEN: Yes.

And the -- the 100,000

was not a cash payment to anyone, although it might have been. It might have been a contribution to a political

action committee that had been formed to advocate for this initiative. But instead, it was actually the

union's own exercise of its speech and petition rights as it campaigned for the passage of the initiative that would allow the company to get into business in the first place as a casino. So, if the violation turns on the union's exercise of its own First Amendment rights, then there's a more severe problem here than Section 302, I believe. CHIEF JUSTICE ROBERTS: Well, but there was

a promise to exercise the First Amendment rights in a particular way up to the amount of $100,000. MR. McCRACKEN: Yes. That -- that's a

CHIEF JUSTICE ROBERTS: little different. MR. McCRACKEN:

It's a little different, but

also very similar to the promises that are actually on the face of the memorandum itself, because the union

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agrees to waive its First Amendment rights to engage in picketing and boycott activity, as well as the employer waiving some of its rights with respect to its freedom of speech. So this is a case where there are multiple waivers of rights, both speech rights and property rights, going back and forth between the two parties for a central, completely legitimate purpose, and that is, the employer getting into business and the union getting the opportunity to organize its employees. That's all

there is in this picture, is the union, like so many construction unions that we know, advocating in Congress for the passage of laws like the Keystone Pipeline Law. Why did they do that? they want the jobs. They do it because

They hope that if they help the

industry develop a pipeline, that their members will work on those jobs. That is a combination of interests

funneled through the First Amendment's protection for mutual effort, as the Court recognized in Pennington, and, of course, the Noerr-Pennington Doctrine is one of our most important constitutional protections. That's all that happened in this case. there's nothing nefarious about it. What -- there is -- there are some extremely damaging things that the Respondents' very simplistic So

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argument will -- would accomplish if it were adopted. Justice Kagan referred to the -- the grievance procedure. Well, there's also arbitration in this agreement, as well as in collective bargaining agreements. But one searches in vain in 302(c) for any

exception for arbitration, even though the Court has said over so many years that it is the most important thing under the Labor Management Relations Act. Thank you. CHIEF JUSTICE ROBERTS: Counsel. The case is submitted. (Whereupon, at 11:03 a.m., the case in the above-entitled matter was submitted.) Thank you, counsel.

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A $100,000 4:6,12 6:8 7:4,24 20:22 21:10 28:19 54:13 55:19 a.m 1:13 3:2 57:14 ability 29:21 able 49:24 above-entitled 1:11 57:15 absent 33:25 absolutely 51:14 abstract 3:23 4:15 accept 15:14 40:25 accepted 13:13 17:25 18:2 access 7:13 8:20 11:10,19 14:20 19:5 21:6 24:21 25:2 29:22 30:4,6 35:6 39:7 46:14 48:11 accomplish 57:1 accurate 8:7 acknowledge 39:20 act 3:17 4:9 7:18 22:2,7,10 25:20 26:16,18 30:12 31:5 33:3,4,9,16,24 34:10 35:14 39:6 41:16 48:8 57:9 action 13:4,21 14:1 17:23 55:8 activity 19:23 20:3 56:2 Adcock 46:10 added 25:18 34:12 36:6

address 26:3 addresses 11:10 11:18 administer 30:8 administered 13:24 administration 14:4 admits 26:17 adopted 57:1 advertising 6:8 45:10 advocate 55:8 advocated 12:13 advocating 56:12 AEP 30:12 afresh 18:9 age 13:20 ago 10:23 23:9 agree 25:12 30:24 40:13 44:17,17,22,23 45:14,16 49:15 54:25 agreed 30:17 agreement 4:7 4:24 5:15 6:9 8:14,18 9:2,15 11:3,7,11 12:1 12:1,24 22:9 23:1,4 24:16 24:17,20 25:11 26:19 27:6,15 28:19,23 29:3 29:5,20 30:22 31:23 37:12,15 37:22 40:2,7 40:12,19 42:23 42:23 43:8,14 43:23 45:8,8 45:12 46:7,11 46:15,21 47:1 47:17 57:5 agreements 3:11 8:6,11 9:22,24 9:24 10:6,11

10:15 20:19 23:14 24:13 25:12,17 26:17 27:2,9,12 28:8 31:7,13,16 32:6 37:6,8,10 37:16,17 40:8 40:16 48:10 51:8 54:1 57:6 agrees 39:18 42:24 45:6 56:1 AL 1:6 Alito 12:3,7,10 12:15 14:6,15 14:24 15:8 17:10,14 alleged 5:19 40:19 54:22 alleges 12:18 alleging 29:2 allow 44:23 55:12 allowed 14:8 31:22 53:7 allowing 23:5 allows 30:5 44:15 alternative 32:8 amended 33:3 36:5 Amendment 55:15,18 56:1 Amendment's 56:18 amicus 1:19 2:7 16:23 amount 55:19 analogy 4:2 answer 22:14 34:19 39:21 41:22,24 anti-union 24:7 antitrust 19:22 19:24 20:4,8 33:7 anyway 33:11

34:8 52:22 appeals 25:15 APPEARAN... 1:14 appears 54:17 applicable 34:22 application 20:15 22:4 applies 36:8 apply 16:13 19:22 30:3 32:12 33:12 34:18 36:5 39:14 47:5 approach 29:21 appropriate 41:18 approved 32:20 32:20 arbitrate 5:6 49:16 arbitrating 49:16,17,18 arbitration 29:2 46:16,18,19 49:15 57:4,7 area 15:25 20:9 41:14,15 arguably 4:4 argue 24:1,4 46:13 argued 23:6 arguing 32:19 50:16 argument 1:12 2:2,5,9,12 3:4 3:7,21 7:11 13:3 16:22 19:17 23:3,9 23:11,12 26:11 30:20 31:2 34:16,25 35:11 38:22 43:12 47:5 50:2 53:19 57:1 article 8:9 9:18 17:12

aside 46:16 asking 11:16 aspects 35:7 asserts 8:5 assets 51:9 assistance 26:23 27:17 28:17 29:10 37:2 38:2 50:24 52:17 assists 36:18 assume 6:2 47:25 assumed 13:25 14:5 18:7 Atkinson 13:12 authority 41:17 authorized 30:25 auto 50:13 automatic 44:11 avoid 3:12,13 26:19 B b 32:1 back 8:11,15,16 34:16 37:25 39:25 40:23 47:22 48:21 56:7 backed 24:12 ballot 23:18 26:21 53:5 ban 32:2 39:4 barber 34:22 42:6 barbers 42:9 bargain 36:10 38:7,8 bargaining 3:16 3:19 9:17 12:20,24 29:20 30:11,22 31:4 31:6,23 32:6 37:14,16 39:13 42:17 43:8

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47:10,13 57:5 based 20:16 BASF 30:9,9 beautifully 32:13 begs 43:21 behalf 1:16,21 2:4,11,14 3:8 26:12 53:20 belief 20:12 believe 11:23 12:17 27:24 28:24 31:25 37:12 39:25 45:9,21 46:23 48:16 49:12 55:16 benefit 25:10 27:6 34:1 37:22 44:2,10 53:5,9,10 benefits 18:24 43:9 44:9,9 48:1 50:22 best 19:6,16 better 26:4 big 24:2,5 41:4 Billing 16:11 19:16,17,20,21 20:14 32:12 33:6 Billings 20:8 32:12 binding 34:3 bit 8:15 17:7 33:8 blood 34:20 Board 23:10 24:10,12 26:22 41:17 Bologna 34:21 42:7,13 bought 54:8 boycott 5:3 56:2 Breyer 20:21 21:5,9,12,17 21:23 34:15

35:15,18 36:2 40:22 41:3,7 41:10,12,14,22 42:15 Breyer's 22:14 bribe 54:13 bribery 28:12 39:3 bribing 16:6 brief 8:5 16:11 18:5 45:9,22 bright-line 32:2 bring 34:8 broad 19:11 brought 34:7 bunch 23:24 business 5:3,23 6:16 8:3 53:8 55:12 56:9 C c 2:1 3:1 30:5,14 32:2 47:11 California 1:15 call 42:18 46:22 called 51:18 calling 41:15 campaign 20:20 21:1 25:10 28:19 35:2 36:21 37:21 46:11,25 52:19 campaigned 55:11 campaigns 3:13 3:15 35:7,21 card 10:3 23:5 23:13,14,22,25 24:13 care 52:13 carefully 13:20 carve 24:19 case 3:4 4:13 5:1 6:1,21 7:24 8:12,17 9:1,14 11:3,6,14 12:13 13:16,16

13:18,23 15:12 16:13 17:6,12 17:16,18 18:6 19:20 23:9 24:12,16 26:15 27:3 28:5,25 30:9 33:18 34:5 38:7 42:6 43:5 44:6 52:23 56:5,22 57:13,14 cases 40:18 cash 55:6 casino 10:18 53:7 55:13 casinos 10:16 catering 15:1 caveats 39:10 CBA 29:20 30:1 celebrity 3:25 central 18:16 35:1,7 42:1 56:8 century 34:20 42:8,9 certain 13:20 14:17 certainly 6:19 9:9 19:10 23:11 33:22 52:17 certification 30:21 certiorari 17:17 charge 15:20 check 10:4 20:22 23:5,13,14,23 24:13 Chief 3:3,9 5:8 5:13 8:21,25 9:7,23 10:3 16:16,19,21,25 22:11,14,21,24 23:12,16,21 26:9,13 53:15 53:16 55:17,21 57:11

choice 24:15 choosing 36:11 Chriskey 8:10 circuit 4:14 17:15 18:12 25:11,17 27:8 28:7 34:5,8 37:9,20 53:25 54:7 Circuit's 8:12 25:6 27:16,23 34:4 54:16 circumstances 39:12 cites 16:10 claim 30:15,16 34:7,9 clarify 37:5 clause 27:14 47:11 clauses 51:7 clear 16:2 40:23 clearly 29:13 Cleveland 8:19 co-counsel 17:25 co-employees 12:22 Coca-Cola 45:10 code 18:21 coerce 5:4 coercion 23:6 coercive 23:15 23:17,19 24:5 coffee 15:3 collect 10:12 collective 3:16 3:19 12:19,24 29:19 30:10,22 31:4,6,23 32:5 37:14 39:12 42:17 47:9,13 57:5 collectively 36:10 37:16 43:8 combination

56:17 come 3:14 20:5 26:3,6 44:15 comers 9:13 comes 6:1 21:11 23:22 27:17 43:22 coming 50:1 commitment 6:2 committee 55:8 committees 36:8 common 4:24,24 8:6 32:4,5 51:7 communicating 14:22 communicatio... 33:23,25 39:15 51:6 companies 10:17,18 company 6:6 15:2 47:7 50:6 50:6,7,8 55:12 compel 29:1 complaint 11:6 completely 56:8 comprehended 25:25 compromised 52:16 concede 23:17 concedes 24:18 concept 33:12 33:13 concessions 46:10 concluded 25:16 conclusion 19:7 conduct 32:17 32:19 34:6 52:18,25 conflict 3:12 8:22 26:16 32:4,21 33:14 33:19 34:2 conflicting 33:10

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Congress 19:8 20:2 56:12 Congress's 20:16 consider 13:10 consideration 27:19 28:1,3,9 28:16,21 38:16 38:24 45:19 46:15,23,23 51:11 considering 11:3 conspiracy 18:24 constitute 14:8 14:18 20:20 constitutional 56:21 construction 56:12 construing 27:7 contested 3:14 context 9:8 20:13 Continue 21:23 continues 29:10 contract 10:22 30:8 contracts 3:18 contractual 49:13 contractually 39:18 contrary 39:22 41:24 contribution 55:7 control 33:22,24 39:19 45:7 50:12 51:4,5,9 conveyance 14:17 convince 20:12 convincing 12:22 cooperate 55:1 cooperated

54:21 cooperation 55:1 core 3:16 Cornell 8:9 Corporation 8:12 correct 11:1 38:15 51:18 correctly 48:17 51:13 corrupt 25:14 54:9 corruption 27:4 costs 24:8 counsel 16:2,16 26:9 32:11 34:6 53:13,16 57:11,12 course 5:5 16:19 27:11,13 31:4 33:2 38:3,21 40:20 43:8 51:7 52:21 56:20 court 1:1,12 3:10 13:20,23 14:2 17:1,4,17 18:1,3,9,14 19:19,22,25 23:8 24:11 26:14 27:19,24 29:7 33:21 38:1 40:7,21 50:23 54:17,20 54:24 56:19 57:7 court's 13:11,11 20:15 38:1 courts 13:10,14 14:3 18:2,6,7 25:15 40:8,11 40:15 42:10 cover 19:12 coverage 36:20 42:18 covered 21:2,6

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earlier 12:13 13:3 22:25 Eaton 8:10 economist 4:8 effect 28:23 efficient 3:13 effort 5:6 56:19 eighth 42:8 either 32:6 46:9 election 10:24 24:11 26:21 39:9 51:18 52:24 elections 9:21 element 22:8 elements 9:25 25:3 Eleventh 17:15 18:12 25:6,11 25:17 27:7,16 27:22 28:7 37:9,19 54:16 employed 53:7 employee 7:13 19:5 24:25 25:2 29:23 31:5 36:8 43:17 46:10 47:20,21,24 48:2,5,6,12 49:2 52:16 employee's 33:24 employees 3:18 5:5,9 11:18 14:22 15:3 23:6 24:7,14 24:24 26:4 29:14,21 31:7 32:7 33:21 36:9 37:3 38:10 39:8 43:9,17 44:3 44:10 46:8 48:13,18 49:5 49:19,20,24 50:3 51:15

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enforcing 26:15 33:18 engage 14:4 56:1 ensure 39:4 enter 45:11 entered 9:1 10:17 environment 3:15 equal 9:6,13 equally 21:13 especially 43:7 ESQ 1:15,17,20 2:3,6,10,13 essence 7:17 essentially 13:25 32:23 establish 24:17 established 20:2 ET 1:6 event 5:6 Eventually 51:24 exact 40:10 exactly 4:13 35:17 38:25 39:2 50:15 51:19 example 4:10 16:6 28:18 30:4 37:13 42:19 45:9 46:1 47:21 49:3 Excelsior 51:12 exception 30:13 30:18 36:24,24 42:8 57:7 exceptions 30:3 30:3 32:3,9 39:11,13 exchange 6:21 45:17,20 46:9 52:12,16 53:1 54:1 exchanged 4:20

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24:11 give 5:11 9:6,13 10:9 11:25 32:7 34:10 46:4 47:5,7 51:14,20 52:11 given 5:2 15:7 24:21 28:2,9 36:8 43:6,11 45:7,11,19 50:3,15,19 52:10 54:2,3 gives 18:5 21:15 28:17,18 33:16 35:14 36:17 39:18 40:11 41:16 50:6 52:1 giving 30:7,13 45:3 47:17 53:14 go 6:22 8:11,15 8:16 24:10 31:7 32:8 35:21 40:4,23 43:9,17 46:3 G 46:15 47:20,24 G 1:15 2:3,13 48:1 53:7 3:1,7 53:19 go-beyond 21:25 gag 27:14 51:6 goes 28:2 34:16 gathered 23:25 42:22 49:19 geared 22:19 52:5 general 1:17 going 21:18,18 33:14 34:5 32:17 35:4 getting 45:14,15 39:14,16,25 56:9,9 43:1,25 44:4 gift 32:2 39:4 47:5 48:13,20 44:12 56:7 Ginsburg 10:20 good 3:15 45:9 11:2,5,12,20 48:5,6,18 13:15,19,23 Goods 8:17 17:21,24 25:5 goodwill 50:3 25:16 26:25 govern 42:14 27:21 28:11,15 governed 35:2 28:22 37:4,18 government 40:5,15 53:3 16:10 18:25 Gissel 23:8 32:21 53:25

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history 20:17 49:4 hold 17:15 holding 27:17 37:25 holds 32:15 hole 36:25 41:1 41:4,6,12,15 41:25 Honor 6:4 12:6 12:12 15:6 16:15 31:3 39:24 42:13 44:21 honored 11:8 hope 56:15 Hospital 34:4 hospitality 10:15 hotel 10:17 hotels 10:16 H hours 52:6 hall 26:6 hundred 46:17 hand 43:18 46:5 hundred-thou... 46:8 46:25 52:19 hands 16:1 53:4 happen 45:21,23 hypothetical 52:23 45:19 49:7 happened 56:22 52:21 happens 6:16 I 7:1 hard 3:13 10:11 idea 31:15 51:1 illegal 25:13 harm 12:18,18 29:11 37:15 harmonize 40:13 43:20 19:21 44:22 46:5 head 31:21 49:18 hear 3:3 18:6 imminence heard 53:3 12:25 heart 41:24 imminent 12:4,8 held 27:19,24 12:10,18 33:22 implicated 28:4 help 5:3 6:15 28:13 29:13 56:15 implication hiring 50:7 13:21 17:22 historically implicitly 32:22 17:25 48:6

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important 9:15 21:13 33:1 35:20 38:22 43:3 49:23 50:16 56:21 57:8 importantly 33:16 inadministrable 48:14 included 29:19 30:1 including 42:16 42:17 increase 9:16 independent 34:9 indicate 20:18 indication 10:10 36:14 indirect 50:22 individual 27:12 individually 37:13 Industrial 8:9 industry 5:25,25 10:15 56:16 influence 36:9 influenced 28:5 information 24:24 27:14 30:10,11,13,16 33:20 38:3 39:14 47:7 50:20 52:14,20 inherently 23:15 23:20 25:17 initiative 53:5 55:9,11 injunction 11:16 injunctive 29:15 ink 18:11 input 50:14 insurance 36:20 intangible 27:17 51:8 intangibles

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19:12 intend 19:8 intended 20:4 intent 20:16 interest 5:24,24 15:7 32:4 46:18 interests 52:16 56:17 interlocutory 25:8 interpretation 40:25 48:20 50:17 intricate 20:2 intrinsically 49:12 inviting 38:12 invoke 18:8 involved 27:4 involving 13:24 isolation 17:2 19:10 issue 17:6 18:12 19:5 22:18 26:1 27:11,13 35:19 37:11,14 50:18 55:3 items 7:4 46:14 J Jeep 34:18 35:9 36:2 42:6 jobs 56:15,17 join 23:23 joining 24:8 judiciary 13:25 jurisdiction 18:6 34:11 40:11 Jurisprudence 34:17 justice 1:18 3:3 3:9,20 4:15,19 4:23 5:8,13,16 6:1,5,6,11,18 7:2,3,10,11,16 7:22 8:4,8,21

8:25 9:7,14,19 9:23 10:3,8,9 10:19,20 11:2 11:5,12,20 12:3,7,10,15 13:2,6,15,19 13:22 14:6,15 14:24 15:8,16 16:2,16,19,21 16:25 17:10,14 17:21,24 18:18 18:19,23 19:16 19:18 20:7,11 20:21 21:5,9 21:12,17,23 22:11,14,14,21 22:24 23:12,16 23:21 24:2 25:5,16,21 26:9,13,25 27:21 28:11,15 28:22 29:17 30:19,23 31:10 31:20 32:11,15 32:17 33:10 34:15 35:15,18 36:2,12 37:4 37:18 38:5,18 38:21 39:1,5 39:20,21 40:1 40:5,15,22,24 41:3,7,10,12 41:14,22 42:15 42:20 43:10,24 44:9,19 45:1 45:13,23 46:13 46:19 47:2,4 47:12,16,23 48:9,22,25 49:7,10,21 50:5 51:1,12 51:17,22,25 52:5 53:3,15 53:16,22,24 55:2,17,21 57:2,11

K Kagan 9:14,19 10:9,19 13:2,6 30:19 31:10,20 38:5,18,21 39:1,5,21 42:20 43:10,24 47:4,12,16,23 48:9,22,25 49:7,10,21 50:5 51:12,17 51:22,25 52:5 57:2 Kagan's 32:18 Kennedy 3:20 4:15,19,23 6:6 6:11 7:3,11 10:8 15:16 18:19,23 39:20 40:1 51:1 Keystone 56:13 kind 6:14 40:1 46:6 50:7,7 kinds 8:5 35:19 35:20,24 41:17 43:25 47:6 knocking 7:25 know 38:9 44:11 45:17 56:12

Labors 23:10 language 17:8 18:3 20:16 25:19 largely 13:10 larger 41:6 Laughter 22:16 22:23 24:3 42:11 law 15:5 16:12 24:12 31:1,18 31:24 33:2,6,7 33:7,8 34:20 36:15 54:9 56:13 lawful 6:11,12 24:18 25:17 lawfully 24:22 laws 17:3 18:16 18:17 19:22,24 20:1,4,5,17 31:12,14,15 56:13 lawsuit 29:1,6 lease 14:9 Lechmere 33:22 legal 30:16 37:16 54:3 legislation 5:17 5:22 8:2 25:23 L legislative 49:4 legitimate 24:13 L 1:20 2:10 56:8 26:11 lends 51:2 labor 3:17,19 4:3,9 5:4 6:17 lent 4:22 7:9 14:13 15:11 8:10 17:3 17:8 18:16,17 22:7 lesser 14:25 22:8,10 24:10 25:3 26:16,18 let's 9:1 38:8 43:16 26:21,22 30:12 31:1,11,14,15 letter 34:13 31:18 33:2,3,7 license 15:7,9,10 15:12 33:8,9,15,23 light 19:25 34:10 35:14 likelihood 9:16 36:15 39:6 40:12 41:16,16 limitation 25:18 limited 14:21 42:14 57:9

20:8 limits 16:3 line 48:14 53:8 lines 21:1 30:23 Lion 8:17 list 5:8,9,9 7:13 19:5 24:25 25:2 29:23 38:3 39:8 51:14,20 52:9 52:24 listed 31:14 listen 38:10 50:14 lists 21:7 35:6 50:20 52:14 literal 22:4 48:20 literally 19:22 litigated 13:7,9 litigation 51:7 little 17:7 55:22 55:23 live 11:3 Local 1:3 3:4 longer 29:5 look 17:4 44:4 looked 13:20 19:25 37:13 looking 18:3,9 loses 42:2 lot 7:1 18:11 24:8 lower 18:2 38:1 lunch 15:2 M machines 5:17 25:21 major 10:16,17 majority 10:7 12:22 23:1 management 3:17 22:10 26:5 33:4 57:9 manufactures 6:7

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Mardi 29:13 33:18,20 market 14:10 16:5 marketability 9:10 MARTIN 1:6 massive 36:25 matter 1:11 31:17 57:15 McCRACKEN 1:15 2:3,13 3:6 3:7,9 4:10,17 4:21 5:1,10,14 5:19 6:4,10,12 6:25 7:7,15,19 7:23 8:4,8,24 9:4,9,18 10:1,5 10:13,20 11:1 11:5,14,23 12:6,9,12,16 13:5,8,17,22 14:12,19 15:5 15:10,21 16:14 16:17,20 53:17 53:19,21,22,23 54:15 55:5,20 55:23 mean 6:19 34:13 36:16 38:19 43:11,24 44:10 47:25 53:6,11 meaning 45:13 means 4:25 18:20,20 44:20 45:16 meant 26:18 34:9 42:13 mechanism 49:13 members 6:23 44:16 56:16 memorandum 55:25 memorial 34:4 34:19 mention 42:9

mentioned 9:19 18:1 25:22 Mercy 34:4 merely 50:14 meritorious 11:15 merits 17:11 mess 35:5 Messenger 1:20 2:10 26:10,11 26:13,25 27:10 27:22 28:14,16 28:24 29:17 30:2,19 31:3 31:19,25 32:14 32:25 33:13 35:13,17 36:1 36:4,23 37:5 37:11,24 38:5 38:15,20,25 39:2,10,24 40:3,10,17 41:2,5,8,11,13 41:20 42:12,16 42:20 43:5,15 44:6,18,21 45:5,18,25 46:18,22 47:3 47:4,9,14,19 48:3,16,23 49:1,9,11 50:1 50:10 51:4,12 51:16,19,24 52:4,8 53:11 metaphysical 34:25 MICHAEL 1:17 2:6 16:22 mine 48:20 minute 3:22 minutes 53:17 misuse 21:16 money 4:17,20 7:17,20 20:25 21:14,24 39:17 43:19 54:4 moot 17:17

28:25 motive-based 25:18 move 50:21 Mulhall 1:6 3:5 12:3 17:15 29:14 50:16 Mulhall's 37:25 multiple 19:20 56:5 mutual 5:14 56:19 N N 2:1,1 3:1 names 11:10,18 national 22:7,8 23:10 24:10 26:16,18,22 30:12 33:9,15 33:23 34:9 35:13 39:6 41:15,16 necessarily 16:9 52:13 necessary 5:22 need 38:18 50:23 needed 5:4 27:19 needn't 35:21 nefarious 56:23 negotiate 42:25 43:2,14,16,16 43:19,23,25 44:1 negotiated 12:24 negotiating 43:7 neither 45:2 neutral 35:6 39:9 neutrality 8:13 10:6 11:10,17 19:5 21:8,9 25:3 48:10 51:3 never 11:8,25

13:6 45:21 new 53:8 niggling 54:12 NLRA 30:16 33:19 34:7,14 35:4 42:2 NLRA's 42:1,5 NLRB 9:4,20 33:24 34:6,10 35:3 42:18 51:13,20,20 Noerr-Pennin... 56:20 non-incumbent 8:18 noncompete 45:8,12 51:8 nonunion 33:20 November 1:9 number 21:15 numerous 32:10 O O 2:1 3:1 objective 16:9 objectives 3:16 obtain 15:22,23 obtained 15:24 obviously 34:3 38:16 43:2 occur 12:21 occurred 29:3 odd 40:6 offering 16:6 office 14:11 officials 30:6 Oh 5:13 okay 6:5 21:23 21:23,25 34:18 36:22 37:6 42:3,3 44:15 44:16 48:22 51:22,22 once 11:21 ones 48:9 opinion 21:6 25:6,7,8 27:16

27:23 34:3,4 opportunity 56:10 oppose 45:2 opposing 53:13 opposite 40:10 opposition 37:9 oral 1:11 2:2,5,9 3:7 16:22 26:11 order 8:1 12:4 19:21 ordered 54:20 organization 40:12 organize 4:12 9:3 26:3 29:13 36:9 56:10 organized 23:2 organizer 23:21 organizing 3:12 3:14,18 5:5 20:20,25 25:9 26:17 27:2,9 27:12 29:10 35:2,7,21,24 36:6,15,15,18 36:21,23,24 37:6,7,10,17 37:21 38:2 42:16 46:7 50:24 original 49:4 origins 21:21 outside 20:13 35:25 54:4,9 overrule 38:1 owners 15:17 P P 3:1 Packing 23:9 24:11 page 2:2 18:5,11 paid 4:22 7:4,6,9 7:12 14:13 15:11 17:8

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27:18 28:1 51:10 pardon 12:1 park 34:18 35:10 part 33:1,2,3 35:8,9 36:15 36:21 participate 50:9 particular 10:21 23:4 37:12,14 42:2 55:19 parties 4:4,5 18:8 20:19 24:10 31:16 51:21 54:21 56:7 parts 31:1 35:3 party 51:10 pass 5:21 passage 27:2 28:12 55:11 56:13 passed 8:2 pay 4:5,6 43:19 47:22 paying 7:17,20 payment 27:20 28:10,20,21 37:25 48:23 49:1 53:4,8 55:6 pays 51:2 peace 3:19 peaceful 54:1,8 pedestal 35:9 36:3 42:6 pending 29:1,7 29:8 Pennington 56:19 people 20:7 Pepsi 45:10,11 percent 9:20,21 perfectly 24:13 24:18 44:14 period 29:5 52:5

permissible 22:7 permit 5:17 persuasive 34:3 petition 8:1 26:20 55:10 Petitioner 1:4,16 1:19 2:4,8,14 3:8 16:24 53:20 phase 12:13 phrased 37:15 picket 5:3 picketing 56:2 picture 3:24 54:19,22 56:11 pipeline 56:13 56:16 place 5:23 55:13 plaintiff 11:24 14:5 plant 26:3 play 35:1,20 please 3:10 17:1 26:14 48:25 pled 51:5 point 4:2 13:9 14:3 22:14,25 22:25 32:18 41:10 policies 20:1 22:2 31:11 policy 18:16 20:17 22:8 25:3,19 political 28:19 46:11,25 52:19 55:7 position 9:5 12:15 17:12,19 17:22 18:25 19:4 28:22 37:7,8,25 44:25 possession 14:20 52:9 power 42:1,2 practice 41:18

practices 26:22 39:22 prays 11:6 pre-negotiated 46:9 precertification 8:6 precisely 31:8 preempt 34:11 34:12 preempted 32:22 premise 31:11 premises 11:19 15:3 38:13 39:7 44:16 presented 18:13 18:14 prevalent 10:15 40:4 prevent 31:9 primary 31:8 prior 31:23 private 13:3,21 14:1,7 17:22 18:7 privatize 26:18 pro 6:19 38:24 39:4 44:14 46:7 probably 10:11 19:6 50:10 53:12 problem 19:12 54:12 55:16 problems 50:23 procedure 23:5 49:13 57:3 procedures 22:17,18 26:19 47:18,20 49:8 49:9,23 proceedings 29:8 process 23:4 24:9,18 produces 32:17

profits 50:13 prohibit 53:13 53:13 prohibited 19:6 20:20 43:4 prohibition 7:20 33:14 36:7 prohibits 39:6 promise 5:2,18 6:20 25:23 30:24 34:1 36:19 42:25 45:15 47:6 55:18 promised 5:11 6:15 25:22 46:20 promises 7:13 17:5 25:25 31:22 35:6 47:6 55:24 proper 14:2 property 3:22 3:24 4:4,7,16 4:17,20,25 6:14,22 7:3 14:7,10,17,21 14:25,25 15:4 15:7,15,17,18 15:19,19,21,23 15:25 16:4 19:2 24:21,23 27:14 30:8 33:21 35:19 39:14 44:23,25 46:14 50:20 52:15 56:6 proposition 22:3 22:6 protection 56:18 protections 56:21 provide 24:23 26:23 30:17,17 30:24 provided 8:20 31:14

provides 30:14 32:2 54:10 providing 39:7 provision 10:4 18:15 21:14 33:8 42:2 provisions 11:7 18:17 27:12 33:11 42:5 54:8 55:3 purportedly 22:4 purpose 14:21 22:20 31:8,8 38:17 54:2 56:8 purposes 28:3 51:9 54:1 put 46:2 putting 46:16 puzzled 54:25 55:3,4 Q qualification 41:23 qualifications 42:4 qualify 14:11,12 question 5:20 17:16,20 22:15 37:15 40:20,22 43:15,16,21,22 48:19 49:14 quid 6:19 38:24 39:3 44:14 46:7 quite 4:1 8:15 9:5 10:2 48:14 quo 6:19 38:24 39:4 44:14 46:7 R R 1:17 2:6 3:1 16:22 raise 13:2 36:19

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raised 13:9,16 13:17,18 17:16 40:18 raises 43:21 rare 40:2,3 rate 9:20,21 14:10 reach 18:10,12 19:7 31:16 42:22 50:24 read 17:2 18:14 19:10,20 20:18 27:2,24 34:24 37:9 42:10 54:10 reading 22:1 54:15 reads 25:8 real 15:7 49:24 really 8:16 14:19 51:2 reason 17:17 29:9 30:6 52:8 reasons 28:25 32:25 rebuttal 2:12 16:11 53:19 recall 22:24 receive 11:9 15:14 26:24 29:12 received 6:13,14 29:6 recognition 4:7 6:9 10:24 12:23 22:6,19 24:20 54:2,4,8 recognize 24:16 recognized 56:19 reconciliation 22:9 recruit 6:22 44:16 referenced 18:1 referred 7:3 57:2

referring 7:12 refers 31:18 Refining 13:12 reflected 20:1 25:19 regardless 11:11 31:17 38:7,23 regulation 20:3 regulatory 32:16 42:1,5 reject 25:6 rejected 13:10 23:9,10,15 48:6 Relation 23:10 33:9 relations 3:17 4:3 6:17 8:10 22:7 24:10 26:16,18,22 30:12 33:16,23 34:10 35:14 39:6 41:16,16 42:14 57:9 relationship 39:13 relatively 32:4 release 30:14 relevant 20:17 relief 11:7,13,14 11:15 29:15 remainder 17:3 remained 16:1 remaining 16:17 18:16 53:18 remedies 29:4 remedy 29:6 reminding 24:7 renders 28:25 Reporting 33:4 represent 5:25 36:7 48:13 representatio... 26:19 representative 9:17 31:5 48:8 representatives

36:10 represented 23:2 38:12 request 11:9 52:24 required 9:6 52:2 requirement 51:25 requires 26:20 31:24 39:3 48:21 reserve 16:17 respect 18:11 56:3 respond 20:11 responded 25:18 Respondent 22:3 24:18 Respondent's 8:5 Respondents 1:21 2:11 26:7 26:12 56:25 response 5:12 35:12 responsibility 20:15 restricted 21:21 result 18:10 return 28:18 45:15,16 52:15 reveals 22:4 RICHARD 1:15 2:3,13 3:7 53:19 right 3:25 4:2 6:22,24 7:22 8:23 10:25 13:3 14:1,5,6 14:17,20,25,25 15:2,4,8,13,17 15:17,19,22,22 15:23,24,25 17:22 24:23 25:24 26:24 27:23 30:11

33:15,17,19,21 33:22 34:23 35:11,14,16,16 36:9,22 38:10 41:7,18,22 49:10 rights 8:1 9:6,13 13:21 14:23 35:22 55:10,15 55:18 56:1,3,6 56:6,7 rise 21:15 ROBERTS 3:3 5:8,13 8:21,25 9:7,23 10:3 16:16,19,21 22:11,21,24 23:12,16,21 26:9 53:16 55:17,21 57:11 role 35:1 47:17 49:8,22 50:6 roles 35:20 roughly 35:11 rudimentary 8:16 rule 51:13 rules 20:19 25:9 25:16 27:5 28:8 37:20 41:17 run 20:25 45:10 50:12

51:13 Scalia 5:16 6:1,5 6:18 7:11 8:4,8 24:2 25:21 29:17 30:23 36:12 40:25 44:9,19 45:1 45:13,23 schedule 16:7 scheme 25:14 schemes 33:5 scope 35:25 se 52:13 searches 57:6 SEC 33:6 second 9:11 11:8 29:9 secondly 27:16 secret 23:18 26:21 section 4:11 13:25 14:22 17:2,5 18:4,4 18:15 19:6 21:21 22:5 24:20 25:25 26:15 27:23 30:5,12 32:1 33:1 34:13 36:1,4,6,7,24 40:11 47:11 55:16 securities 19:23 20:1,4 S see 5:13 8:12 S 2:1 3:1 18:23 31:10 San 1:15 seek 29:14,25 sandwiches 15:3 36:7,19,20 satisfies 17:12 seeking 29:4 saying 18:19 selected 9:17 27:3 28:9 self-dealing 31:9 34:24 38:6,14 sell 4:1 9:11 15:3 48:1 54:7 Senator 49:5 says 6:7 21:6 sense 4:8 9:10 23:22 28:11,11 separate 32:21 33:24 34:17 separation 48:7 45:21 50:8 serve 3:16

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serves 24:25 service 30:6 serving 5:23 set 20:19 25:9 27:5 37:20 41:17 settled 39:22 seven 51:17,23 severe 55:16 shop 50:13 show 27:19 28:3 38:16,17 showing 8:10 shows 9:19 28:21 53:1 side 26:5 44:14 53:4 sign 6:9 34:17 signed 8:14 similar 45:7 55:24 simple 38:13 simplistic 56:25 simply 6:15 20:14 32:1 36:14 49:13 Sinclair 13:12 13:19 sit 42:24 43:1 44:4 site 29:22 situation 12:20 six 52:1 Sixth 8:12 34:4 34:5,8 slightly 10:9 slot 5:17 25:21 sold 15:1 solely 54:3 Solicitor 1:17 somewhat 10:6 48:6 54:16 sorry 12:9 38:25 39:1 41:11 43:22 48:24 sort 31:20 32:3 48:4

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42:10 44:13 50:25 statutes 19:11 19:14,20 33:11 statutory 33:5 51:3 stay 35:6 stayed 29:8 steward 16:6 30:7 stewards 30:4 stop 29:15 42:23 43:19 store 8:19 street 3:25 42:7 streets 34:21 stretching 17:7 strike 5:3 7:14 28:20 46:11 47:1,2,3 striking 42:21 42:24 43:20 structure 20:16 30:20 31:1,19 32:1,3 48:4 structured 39:3 submitted 57:13 57:15 substantial 3:21 succeeded 12:21 success 9:20,21 sue 14:5 suggest 9:7 suggested 20:8 suggesting 52:1 53:25 Suisse 16:10 supplant 20:5 supply 5:3 support 5:16 23:6 25:23 supporting 1:19 2:8 16:24 49:5 suppose 6:6 14:8 20:22 36:12,13 42:20 supposed 31:5

48:8 Supreme 1:1,12 sure 18:10 38:6 41:23 47:16 suspected 54:18 T T 2:1,1 table 46:2 Taft-Hartley 33:3 taints 23:4 take 3:24 17:18 18:25 49:15 50:13 52:12 takes 9:5 talk 3:21 16:12 35:22,23 44:4 talking 4:23 33:5 43:7 tangible 7:5 tax 51:9 tear 36:25 tell 5:20 10:14 10:21,21 42:7 49:21,24 54:11 54:11 term 37:12,14 37:17 terms 19:4 31:6 31:22 32:5 54:2 text 36:14 48:21 th 34:20 Thank 16:15,16 16:20 22:22 26:8,9 53:15 53:16,21 57:10 57:11 theory 11:21,24 they'd 52:21 thing 4:19 5:2 6:23 9:8,9 14:8 14:11,13,18 15:9,10 17:5 18:19 19:1,1 19:11,14 24:19

25:1,5 29:11 30:23 31:21 35:9 37:16 39:19 43:2,6 43:10,12 44:7 48:19 49:2,8 49:19,23 50:11 57:9 things 5:12 7:8 8:20 10:1 11:9 11:25 16:4 17:7 19:8,9,13 19:13 20:18,20 21:12 25:2,22 27:11,13,25 29:16,18 30:25 31:13,15,17,21 31:24 32:7,18 33:17 34:25 35:1,2,19,20 35:24,24 36:8 41:25 43:25 44:1,1 50:18 50:19,21 54:3 56:25 think 3:20 6:10 7:16 10:8 16:4 18:2,22 19:18 20:10 23:19 34:23 37:1 38:9 40:23 41:3 43:11 45:16 50:15 51:1 54:7 55:2 55:3 third 29:24 thought 31:11 37:5 40:23 41:14 48:5 thousand 42:4 46:2,4,17 threat 12:4,7,10 33:25 threaten 5:5 three 19:4,8 22:17 27:11,13 32:18 33:17

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39:23 understood 53:24 underwriting 19:23 undisputed 22:3 unfair 26:21 uniform 9:24 unilaterally 39:15 45:6 union 4:12 5:2 5:11,12,18,20 6:3,7,13,19,23 7:4,6,8,17,20 7:24 8:18 9:2 9:11,11,12,15 9:16 11:8,16 12:21 14:9,11 14:14,19 15:14 15:22 16:6 20:23 21:14 22:6 23:2,7,21 23:23,24 24:8 24:15,17,25 25:10 26:2,5 26:24 27:6 28:5,17 29:4 29:11,15,19,21 29:22,25 30:4 30:6,7,11,15 30:15,24,25 31:4,7 32:7,8 34:7 36:5,16 36:18 37:3,22 38:12,13,22 U 39:8,9,17,18 UAW 8:14 40:14 42:21,22 ultimately 12:19 42:23,25 43:1 47:20,24 48:1 43:3,6,11,13 48:12 50:11 44:2,3,8,10,15 undermine 44:23 45:2,4,7 29:25 46:1,4,8,20,24 understand 23:3 47:7,15,17,22 30:20 34:16 47:25 48:1,4,5 35:10 38:6 48:7,9,11,11 44:12,19 51:13 48:17 49:3,10 understandings 49:12,17,22,24

46:14 50:18 throw 35:3,4 41:25 time 7:25 12:8 12:11 16:18 29:5 39:17 times 9:5 40:17 today 18:3 told 37:5 trade 3:24 traditional 20:13 transaction 28:4 treating 19:13 troubling 54:6 trucks 15:2 true 3:23 13:22 15:16 40:10 53:12 trust 13:24 14:4 14:4 turn 44:3 48:11 turned 4:3 turning 31:20 turns 55:14 twelfth 34:20 two 8:22 11:6 21:12 23:23 27:10 28:25 30:2 32:25 33:5 39:11 54:20 56:7 type 52:17 typical 9:14

49:25 50:4,6,8 50:20 51:17,22 52:11,14,24 53:14 54:25 55:25 56:9,11 union's 5:24 25:24 49:8 53:10 55:10,14 unionization 24:25 unionize 8:23 12:23 unionizing 37:2 unions 3:11 9:6 25:9 27:5 36:7 37:1,20 44:1 50:22 52:15 56:12 Unite 1:3 3:4 26:17 29:1,9 29:12 33:17,19 45:21 52:18 UNITE's 52:25 United 1:1,12,18 2:7 16:23 17:3 17:11,21 Unquestionably 6:25 unusual 46:6 52:23 upheld 30:5,9 uphold 27:1 use 14:7,10,16 21:18,18 27:14 30:7 33:21 39:14 44:24 50:20 52:14 useful 3:12 21:14 22:18,20 V v 1:5 3:4 16:10 30:9 vain 57:6 valid 37:10 validated 24:12 valuable 16:8

waiver 15:13 waivers 56:6 waiving 56:3 want 8:22 12:20 16:12 17:18 23:23,23 26:2 37:18,22 38:11 50:8 56:15 wanted 9:2 wants 21:1 23:1 war 34:19 wash 22:5 Washington 1:8 1:18 wasn't 13:16 53:8 way 7:23 8:17 14:7 19:7 21:19,21 55:19 ways 21:15 we'll 4:5,6 6:7 43:19 50:14 we're 43:25 48:13 Wednesday 1:9 weekend 16:8 went 11:15 37:25 wide 31:12,17 widgets 6:7,8,13 WILLIAM 1:20 2:10 26:11 willing 52:18 words 17:5 19:10 37:8 40:1 48:19 49:15 51:3 work 5:21 8:25 16:7 32:24 56:17 worker 16:8 W workers 5:25 wages 32:7 23:25 53:6 36:19 43:17,17 workforce 8:23 49:5 9:3 23:1 waive 15:17 wouldn't 4:16 56:1 6:20 14:6,7

52:25 value 6:23 7:8 9:8,10 14:8,11 14:13,18 15:9 15:11 16:4,5,9 17:5,7 18:20 19:1,9,11,13 24:19 29:12 34:25 35:19 37:1 38:16 39:19 43:3,12 43:12,13 44:7 45:3 47:14 49:12,25 50:1 50:3 53:1 54:4 valued 7:5,6 variables 10:12 variety 31:12,17 varying 9:25 vast 10:7 vehicles 34:18 35:10 versus 13:12 view 26:7 40:24 viewed 17:6,8 19:9 violate 19:23 27:9 28:8 34:7 50:25 violated 40:20 violation 4:8,11 7:18 21:4 28:2 28:10 45:24 46:3 55:14 violations 18:6 29:2 Virginia 1:20 voluntarily 52:7 voluntary 22:6,9 22:19,25 24:20

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69

15:4 46:22 write 21:5 written 20:22 wrong 37:23 54:5,11 wrongful 52:9 52:13 Wyandotte 30:9

3 2:4 17:13 30 38:17 301 40:6,9,11,16 302 4:11 17:2,5 17:23 18:15,20 19:6,14 21:22 22:5 24:20 25:25 26:15 27:9 28:8 30:3 X 32:1 33:1,7,15 x 1:2,7 33:18 34:7,9 34:12,12,13 Y 36:4,24 39:2 Yeah 4:10 40:9,13,17,20 year 10:23 41:20 42:13,18 years 23:9 39:22 43:20 44:8 57:8 48:3,7,19,21 50:17 52:12 Z 53:12 55:16 302's 31:8 0 302(b)(1) 29:11 1 302(c) 30:4 57:6 302(e) 13:25 1 30:5 34:17 18:4 10(e) 18:4 355 1:3 3:4 10:03 1:13 3:2 100,000 7:14 4 54:6,7 55:4,5 11:03 57:14 5 11a 18:5 5 30:12 12-99 1:4 3:4 53 2:14 13 1:9 16 2:7 6 18th 42:8 67 9:20 1957 4:13 1959 36:5 7 1970s 8:11 7 14:22 1976 8:15 76 9:21 1990s 40:4 8 1993 13:23 8(a)(2) 36:6 2 8(a)(3) 36:8 2 30:14 47:11 8(c) 33:23 2013 1:9 9 24 52:6 26 2:11 90s 8:7 3

Alderson Reporting Company

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